To enter the Justice complex will be just that now.
Sessions Is Wrong to Take Science Out of Forensic Science
By ERIN E. MURPHY
THE NEW YORK TIMES
APRIL 11, 2017
Prosecutors applauded the April 10 announcement by Attorney General Jeff Sessions that the Department of Justice was disbanding the nonpartisan National Commission on Forensic Science and returning forensic science to law enforcement control. In the same statement, Mr. Sessions suspended the department’s review of closed cases for inaccurate or unsupported statements by forensic analysts, which regularly occur in fields as diverse as firearm and handwriting identification, and hair, fiber, shoe, bite mark and tire tread matching, and even fingerprinting analysis.
If all you knew about forensic science was what you saw on television, you might shrug off this news, believing that only the most sophisticated and well-researched scientific evidence is used to solve and prove crimes. But reality is different.
D.N.A.-exoneration cases have exposed deep flaws in the criminal justice system’s use of forensic science. Reforms have not come easy, but slow and plodding progress has been made. In 2005, the F.B.I. said that it would no longer conduct bullet-lead examinations after a review panel found matches essentially meaningless. A blue-ribbon panel of the National Academy of Sciences raised the same concern in a 2009 report that found nearly every familiar staple of forensic science scientifically unsound.
Prompted in part by that report, the Justice Department initiated a review of thousands of cases involving microscopic matching of hair samples. In 2015, the F.B.I. announced its shocking initial findings: In 96 percent of cases, analysts gave erroneous testimony. At a meeting last spring of the commission that Mr. Sessions just disbanded, the department said it would expand the view to include a wider array of forensic disciplines.
With the announcement by Mr. Sessions, this momentum comes to a screeching halt. Although forensic science would seem a low priority for an incoming attorney general, it is not altogether surprising that it was in Mr. Sessions’s sights. As a senator (and former prosecutor), Mr. Sessions made forensic science a priority. He sponsored and shepherded to passage the Paul Coverdell National Forensic Science Improvement Act of 2000, which remains the signature federal funding mechanism for state all-purpose forensic labs. That might suggest that Mr. Sessions would care about the integrity of forensic science, but his enthusiasm has been for more — not better — forensic evidence. When the National Academy of Sciences’ scathing report was released, Senator Sessions simply waved it away, remarking, “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain” — ignoring the panel of experts who had concluded just that.
Every independent critique of our forensic science system comes back to the same basic conclusion about both the root of the problem and how to fix it: Forensic science rests under the exclusive control of police and prosecutors, and its legitimacy and integrity have suffered as a result. Even Obama-era law enforcement officials had a tenuous relationship to reform. Just last year, the President’s Council of Advisors on Science and Technology issued a report that reaffirmed and extended the 2009 findings. The F.B.I.’s response was to vehemently disagree, the Obama Department of Justice basically replied, “Thanks, no thanks,” and the professional association for the nation’s district attorneys criticized the report for its insufficient attention to “the ancient debate over precisely what constitutes ‘science’ ” while asserting that the final arbiter of good science should be lawyers and courtrooms, not scientists and laboratories.
The 2009 report concluded that the only way to ensure effective oversight of forensic evidence was to protect its independence from law enforcement. But its recommendation of a national, independent oversight agency was met with intense resistance from federal and state law enforcement. Instead, the national commission was formed as a compromise solution that brought in the National Institute on Standards and Technology as co-chairs and stewards of scientific values. Some forensic scientists — at times grudging partners in the process of reform — even came to embrace greater professionalization, and one major professional organization recently declined to support the Justice Department’s proposal to move forensics in-house.
The loss of an even partially independent national commission is no trivial matter.
In its brief two years of existence, it drafted 43 standards that actually changed forensic science, on the ground, for the better. The commission’s guidance covered issues like certification requirements for forensic examiners (who, unlike your local manicurist or food server, typically must not pass any basic competency exams still), discovery rules (providing criminal defendants with at least some of what parties receive in civil cases) and reporting standards (discouraging the use of the popular phrase “reasonable degree of scientific certainty” as it has “no scientific meaning and may mislead fact-finders”). The National Commission on Forensic Science was even poised to issue a raft of best practices for the wild west of digital forensics, which has exploded without supervision over the years. It seemed that a promising new era of accuracy, transparency and accountability in forensic science had dawned.
There are jurisdictions and even prosecutors committed to meaningful forensic reform, but none with the resources, expertise and authority of the commission. And so long as forensic science is under Department of Justice control, reformers will be cut off from the primary purse for scientific research and setting best practices.
We know what happens when prosecutors and police officers control forensic science, instead of scientists. We have already lived through an embarrassing parade of wrongful conviction, tragic incompetence, laboratory scandal and absurdly unsupported forensic findings. We have commissioned the studies, read the reports. They brought us to the place we are now, at the cusp of something better. Sadly, with the flick of one prosecutor’s self-interested pen, that vision is now gone.
And this is an issue that Radley Balko of the Washington Post writes about quite frequently - Forensic or Junk Science. Now even the New York Column is addressing this junk. It is all well chewed over and was finally making some progress but this is how we make America Great Again by regression not progression.
Another Reprieve for Expert Testimony That Is Anything But
About New York
By JIM DWYER THE NEW YORK TIMES APRIL 11, 2017
Dental molds used in forensic dentistry research at the University at Buffalo. A federal commission on forensic science set up in 2013 is being shut down. Credit David Duprey/Associated Press
A tooth expert came to a Staten Island court in 1998 and said the teeth in James O’Donnell’s mouth proved he had bitten a woman who had been sexually assaulted in Clove Lakes Park. Another such expert testified in upstate New York that Roy Brown’s teeth were “entirely consistent” with the bite marks found all over the body of a woman who was killed in 1991 outside a farmhouse near Auburn. Both men went to prison. Both were proved innocent later through DNA testing.
The bite-mark testimony was wrong. Mr. O’Donnell and Mr. Brown were among 21 people across the country convicted on bite-mark evidence — some of them sent to death row — who were later proved innocent by DNA tests.
It is one of the classic forensic practices, familiar to generations who watched television crime shows, that turned out to have hollow foundations when compared with the rigorous science involved in DNA testing. Besides bite marks, the techniques include comparisons of hair, handwriting, tire treads and footprints, and certain kinds of ballistic analysis.
These revelations led to efforts over the past decade by scientists and the legal authorities to take stock of investigative practices that had become embedded in the American criminal justice system since the early 20th century. Many of them resembled science but turned out to be more like magic, and untrustworthy evidence.
Those reform efforts appear to have lost their momentum.
This week the United States Justice Department announced that it was shutting down a National Commission on Forensic Science set up four years ago. Separately, at another agency, studies of the “foundational validity” of bite marks and ballistic evidence that had been announced in September will not go forward because of a lack of funding, Kent Rochford, the acting director of the National Institute of Standards and Technology, told the commission on Monday during its final meeting.
In announcing that the commission was coming to an end, Attorney General Jeff Sessions said his department would take unspecified actions to “increase the capacity of forensic science providers” and improve the reliability of analysis.
Yet there are many unresolved questions about which forensic practices even qualify as science and ought to be admitted as evidence. “If you want to put in a nutshell what’s wrong with some of these forensic sciences, it’s that they’re not really science at all,” said Jed S. Rakoff, a federal judge in New York who served on the commission. “They are suggestive techniques, based on some subjectivity.”
Those nonscientific qualities had been surveyed by the National Academy of Sciences in a 2009 report, and in another study issued in September by the President’s Council of Advisors on Science and Technology. The council — composed of, among others, physicists, biologists, engineers and computer scientists — urged that each discipline go through ordinary scientific reviews, like blind testing, replicability tests and error ratings. It was particularly scathing on bite marks.
“Available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bite mark and cannot identify the source of bite mark with reasonable accuracy,” the council reported.
Nevertheless, bite-mark testimony is still admitted into courts in nearly every state and is often used in the most serious capital cases. (A Texas commission recently called for a moratorium.)
Mr. Sessions did not announce any plans to conduct the recommended validation studies. Judge Rakoff said the value of the commission was that it included independent scientists, prosecutors, defense lawyers, judges, and people from crime laboratories.
“It’s one thing to expose the shortcomings and another thing to try to bring everyone on board to find ways to mitigate them,” he said. Some of the procedures, like handwriting analysis and bite-mark comparisons, stood little chance of getting through a scientific review, the judge said, while others, like fingerprinting, probably could.
“The Department of Justice gets their input from police — the F.B.I. most of all,” Judge Rakoff said. “Their view of forensic science is inevitably colored by who their constituency is. That’s equally true of defense counsel.”
At Roy Brown’s trial, the defense noted that he had only four teeth, while the bite marks on the victim’s body showed six. The prosecution explained the extra teeth marks as a result of the struggle during the attack.
The witnesses who testify about such obscure matters as teeth and hair often belong to organizations that issue certificates. “Science is not a matter of accreditation,” Judge Rakoff said. “You can have an accredited group of astrologers, and that still wouldn’t make it a science.”